Ofcom is expected shortly to hear an appeal by News Corp. newspaper websites which have been classified as TV-like services and hence subject to co-regulator ATVOD. ATVOD reasoning is as follows:
ATVOD has concluded that the Service is an ODPS. This is because the Service fulfils each of the relevant criteria set out in section 368A(1) of the [Communications] Act as follows: (a) its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services; A single website or domain may contain more than one service, and Sun Video section does appear to ATVOD to constitute a service in its own right, albeit a service which sits alongside an electronic version of a newspaper. The video content is aggregated on a discrete section of the website providing a catalogue of viewing options. Whilst the videos may in some cases have a specific connection to content in the newspaper, the viewer is not invited to consider the content as subsidiary or ancillary to the online version of the print newspaper. Sun Video is presented as a consumer destination in its own right, and the programmes provided within Sun Video service can be viewed, enjoyed and made sense of without reference to the newspaper offering. The programmes themselves are comparable to the form and content of programmes normally included in television programme services, ATVOD considers that the principal purpose of ‘Sun Video is to provide these TV-like programmes. As noted above, a thematic or topical connection to the (online or offline) newspaper offering is not sufficient to make the video service an integral and ancillary part of the online version of the magazine, given the presentation of the service as a video on demand service in its own right. It is ATVOD’s view that where a video does have a related text article, the programmes can and do make sense without reference to that article (for example ‘Exclusive Jay Kay Chat’). There are also a significant number of programmes which do not link to a related text article at all (eg. ‘2001: A Babe Odyssey’).
(b) access to it is on-demand; Sun Video can be watched at a time of the viewer’s choosing.
(c) there is a person who has editorial responsibility for it; The programmes on Sun Video have been selected and organised into a coherent catalogue of viewing options with a distinct editorial proposition.
(d) it is made available by that person for use by members of the public; and Sun Video is made available on the open internet. Anyone with access to the internet can view the programmes on Sun Video.
(e) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive. The registered office of the provider of the service, News Group Newspapers Ltd, is: 3 Thomas More Square, E98 1XY
In coming to this determination, ATVOD has taken note of Recital 21 of the Directive, which is not binding, and has concluded that Sun Video is a service in its own right which is distinct from the online version of the newspaper and which has as its principal purpose the provision of programmes which are comparable to the form and content of programmes normally included in television programme services.